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Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno 2017 University of Montana School of Law

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land and Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.


The Public Trust As An Antimonopoly Doctrine, Michael C. Blumm, Aurora Paulsen Moses 2017 Lewis & Clark Law School

The Public Trust As An Antimonopoly Doctrine, Michael C. Blumm, Aurora Paulsen Moses

Boston College Environmental Affairs Law Review

The public trust doctrine originated—and has persisted in American law—as antimonopoly protection. From the time of its recognition by American courts in the early nineteenth century, the doctrine has protected the public against private monopolization of natural resources, beginning with tidal waters and wild animals. Ensuing public trust case law has extended the scope of trust protection to other important natural resources, including non-tidal and non-navigable waters, and land-based resources like parks. Courts are now considering the trust doctrine’s application to the atmosphere. Although there is a considerable body of legal scholarship on the public trust, the ...


Inverse Condemnation And Fracking Disasters: Government Liability For The Environmental Consequences Of Hydraulic Fracturing Under A Constitutional Takings Theory, Joseph Belza 2017 Boston College Law School

Inverse Condemnation And Fracking Disasters: Government Liability For The Environmental Consequences Of Hydraulic Fracturing Under A Constitutional Takings Theory, Joseph Belza

Boston College Environmental Affairs Law Review

The practice of hydraulic fracturing, more commonly known as fracking, risks a number of dangerous environmental consequences. Notably, fracking operations can contaminate the underlying water table. Contamination of groundwater can disrupt the access of a nearby property to both potable drinking water and viable commercial irrigation. Usually, when a fracking operation results in this kind of groundwater contamination, affected plaintiffs sue the operator of the rig. This Note proposes that similarly situated plaintiffs also name a new defendant in these actions: the state agency that granted the fracking permit. The governmental actor could bear liability under a constitutional theory of ...


Microbeads And The Toxics Use Reduction Act: Preventing Pollution At Its Source, Davis Truslow 2017 Boston College Law School

Microbeads And The Toxics Use Reduction Act: Preventing Pollution At Its Source, Davis Truslow

Boston College Environmental Affairs Law Review

Microbead pollution presents a significant threat to human health and the environment. As a result, Congress enacted a national ban on microbeads in 2015. This ban is a drastic, reactionary measure that fails to address the continued threat posed by already existing pollution. In addition, the ban represents a continued preference for the command-and-control regulatory framework that failed to prevent microbead pollution in the first place. In contrast, pollution prevention, an alternative regulatory technique adopted by Congress as national policy in 1990, more efficiently prevents pollution by focusing on reducing pollution at its source. In 1989, Massachusetts became the first ...


Sturgeon V. Frost: A Limited Holding Reveals An Environmentally Hesitant Post-Scalia Court, Michael O'Loughlin 2017 Boston College Law School

Sturgeon V. Frost: A Limited Holding Reveals An Environmentally Hesitant Post-Scalia Court, Michael O'Loughlin

Boston College Environmental Affairs Law Review

The first environmental case before the United States Supreme Court after the death of Justice Antonin Scalia, Sturgeon v. Frost, involved the National Park Service’s authority to regulate hovercraft use over a segment of river running through lands under its authority pursuant to the Alaska National Interest Lands Conservation Act. The plaintiff sought to show that the State held title to navigable waters within the State, and that, therefore, the National Park Service did not have authority to enforce its regulation. The parties invoked precedent and argued for textual analysis of the at-issue statute, but the United States Court ...


Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti 2017 University of Connecticut School of Law

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between ...


Drought By Fifth Amendment: Debunking Water Rights As Real Property Comments, Jacqueline Carlton 2017 Brigham Young University Law School

Drought By Fifth Amendment: Debunking Water Rights As Real Property Comments, Jacqueline Carlton

Brigham Young University Journal of Public Law

No abstract provided.


Nutrient Water Quality Trading: A Market-Based Solution To Water Pollution In The Natural State*, Nathan R. Finch 2017 University of Arkansas, Fayetteville

Nutrient Water Quality Trading: A Market-Based Solution To Water Pollution In The Natural State*, Nathan R. Finch

Arkansas Law Review

No abstract provided.


Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan 2017 University of Montana School of Law

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Natural Resources Journal

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland ...


Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes 2017 University of New Mexico

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Natural Resources Journal

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve ...


Plastic Water: The Social And Material Life Of Bottled Water, By Gay Hawkins, Emily Potter, And Kane Race, James Johnson 2017 University of New Mexico

Plastic Water: The Social And Material Life Of Bottled Water, By Gay Hawkins, Emily Potter, And Kane Race, James Johnson

Natural Resources Journal

Book Review


Water Is For Fighting Over: And Other Myths About Water In The West, By John Fleck, Selena Sauer 2017 University of New Mexico

Water Is For Fighting Over: And Other Myths About Water In The West, By John Fleck, Selena Sauer

Natural Resources Journal

Book Review


California Water Reallocation: Where'd You Get That?, Damian Park 2017 Santa Clara University

California Water Reallocation: Where'd You Get That?, Damian Park

Natural Resources Journal

When thirsty, Californians often avoid going to the market for more water. Instead, they might borrow some from their rich neighbors, they might sue them or more commonly, they simply take more from users without much of a voice (e.g. the fish or future generations). These alternatives are often superior to using markets. Within markets, a surprising detail emerges – it is uncommon for farmers to fallow fields in order to sell water to another user. Rather, many water transfers are structured so sellers can have their cake and eat it too. While some of these transfers rightly bring about ...


Trial And Error: How Courts Have Shaped Prior Appropriation In New Mexico, Matthew G. Reynolds 2017 University of New Mexico

Trial And Error: How Courts Have Shaped Prior Appropriation In New Mexico, Matthew G. Reynolds

Natural Resources Journal

This systematic review of New Mexico prior appropriation case law from 1883 to the present employs a thematic chronology in four parts spanning approximately three decades each, including the following topics. Part One covers the initial conflict between prior appropriation and riparian common law and early interpretations of the 1907 Water Act. In Part Two, courts contrast the 1907 Act with the old arid region doctrine and justify the integration of groundwater into prior appropriation. Diminishing supplies and increasing usage drive Part Three’s concentration on proceedings to change places of use and points of diversion, at times deferring issues ...


The Polycentric Turn: A Case Study Of Kenya's Evolving Legal Regime For Irrigation Waters, Stefan Carpenter, Elizabeth Baldwin, Daniel H. Cole 2017 University of Arizona

The Polycentric Turn: A Case Study Of Kenya's Evolving Legal Regime For Irrigation Waters, Stefan Carpenter, Elizabeth Baldwin, Daniel H. Cole

Natural Resources Journal

Formal legal systems comprise a major part, but not the only part, of the “rules of the game” that structure social and socialecological interactions. Throughout the twentieth century, centralization and consolidation of legal authority were dominant themes among many, if not all, legal systems. That process may have been successful in some cases, but in others the presumed economies of scale from consolidation and centralization either did not materialize or were offset by other social costs, including the failure to accommodate local knowledge, expertise, and preferences. In what could become a theme of the twenty-first century, many countries, including developing ...


Going Down To The Water, John Fleck 2017 University of New Mexico

Going Down To The Water, John Fleck

Natural Resources Journal

Foreword


Rethinking Water Governance: Moving Beyond Water-Centric Perspectives In A Connected And Changing World, Rob C. de Loë, James J. Patterson 2017 University of Waterloo

Rethinking Water Governance: Moving Beyond Water-Centric Perspectives In A Connected And Changing World, Rob C. De Loë, James J. Patterson

Natural Resources Journal

From the “water-centric” perspective that is common within the world’s large and diverse water community, water is of central importance, and improving water governance is self-evidently essential. Some water problems can be addressed using watercentric approaches such as watershed management. Unfortunately, evidence is mounting that suggests that many other water problems cannot because their causes and drivers, at scales from local to global, are partly or wholly external to those traditionally considered within the water sector. Water governance in these cases needs to better account for a range of external connections that strongly influence water-related outcomes of concern and ...


The Political Cultures Of Irrigation And The Proxy Battles Of Interstate Water Litigation, Burke W. Griggs 2017 Washburn University

The Political Cultures Of Irrigation And The Proxy Battles Of Interstate Water Litigation, Burke W. Griggs

Natural Resources Journal

Groundwater depletion ignores the political boundaries of western states, the legal boundaries of western water codes, and the jurisdictional boundaries of western water federalism. In the wake of the groundwater revolution, it is becoming apparent that certain interstate lawsuits derive essentially from deeper conflicts rooted in the clash between surface-water and groundwater irrigation communities—and their respective political cultures. The interstate divide may be yielding to the hydrological divide. This article attends to that deeper relationship between irrigation agriculture and political culture across the Great Plains. Part I provides a brief history of its surface-water irrigation communities, to compose a ...


Mythical River: Chasing The Mirage Of New Water In The American Southwest, By Melissa Sevigny, Logan Glasenapp 2017 University of New Mexico

Mythical River: Chasing The Mirage Of New Water In The American Southwest, By Melissa Sevigny, Logan Glasenapp

Natural Resources Journal

Book Review


Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa 2017 Concordia Univeristy School of Law

Marijuana Agriculture Law: Regulation At The Root Of An Industry, Ryan Stoa

Faculty Scholarship

Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the "Regulate Marijuana Like Alcohol Act." For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more ...


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